Common use of Time of Payments Clause in Contracts

Time of Payments. (a) On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety percent (90%) of the product of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.7, as soon as commercially reasonable after the Sale Termination Date. To the extent that the Agent is owed the Adjustment Amount, and the Lenders received the Adjustment Amount, then the Lenders shall promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.

Time of Payments. (a) On the first No later than one (1) business day following issuance after the later of (x) entry of the Approval Order and (y) execution hereof (the "Payment Date"), Agent shall pay eighty-five percent (85%) of the Guaranteed Amount (the "Guaranteed Amount Deposit") (reduced by any amounts paid prior to the payment of the Guaranteed Amount Deposit) in readily available funds, which amount shall be wired to the following account: PNC Bank, National Association, ABA# 000000000, Account # 8026261117, Account Name; Anchor Blue Inc. for the benefit of PNC Bank, National Association, Reference: Anchor Blue (the “Payment DatePNC Account”), Agent shall pay to Merchant an calculate the amount of the Guaranteed Amount Deposit based upon the Retail Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the “Initial Guaranty Payment”) equal to ninety percent (90%) "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the product Guaranteed Amount in readily available funds, which amount shall be wired to the PNC Account no later than the earlier of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last date that is thirty (30) business day immediately preceding days after the Sale Commencement Date (in which case payment shall be of the “undisputed portion of the balance of the Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date and (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (iii) the second business day following the issuance of the final audit report of the aggregate Cost Retail Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final "Inventory Report”"); provided, however, that and Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of Merchant and to draw upon the Agent shall exercise reasonable best efforts Letter of Credit (as defined below) in accordance with Section 3.3(b) to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be extent of the such balance or undisputed balance of the Guaranteed Amountportion. In the event that after the Final issuance of the Inventory Report as verified, the Guaranteed Amount is issued after greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance remainder of the Guaranteed Amount actually paid as set forth above, to the Lender Agent for the benefit of Merchant within three two (32) business days after the Final Inventory Report has been issued. To In the extent event that Merchant there is entitled a dispute with respect to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part the reconciliation of the Final Reconciliation under Section 8.7, as soon as commercially reasonable after aggregate Retail Value of the Sale Termination Date. To Merchandise following the extent that the Agent is owed the Adjustment Amount, and the Lenders received the Adjustment AmountInventory Taking, then any such dispute shall be resolved in the Lenders shall promptly, upon manner and at the written request of Agent, disgorge and remit the Adjustment Amount to Agenttimes set forth in Section 5.2(c) hereof.

Time of Payments. (a) On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety percent (90%) of the product of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date Date, without taking into account the Global Inventory Adjustment (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.7, as soon as commercially reasonable after the Sale Termination Date. To the extent that the Agent is owed the Adjustment Amount, and the Lenders received the Adjustment Amount, then the Lenders shall promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.

Time of Payments. (a) On the first business day following issuance of the Approval Order (the “Payment Date”), The Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety via wire transfer eighty percent (9080%) of the product of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Guaranteed Amount attributable to Merchandise to be included in the Sale Stores as reflected on Merchant’s books and records on the last business day immediately preceding of the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance within one business day after issuance of the Guaranteed AmountApproval Order, if any, which amount shall be paid by Agent by wire transfer to calculated based upon the account designated by GECC net book value of such Merchandise as of such date as set forth in Merchant's books and records. Thereafter, on the earlier of (i) the second one (1) business day following after the issuance reconciliation by Merchant and Agent of the final inventory report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Serviceinventory taking service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to Merchant via wire transfer the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed unpaid balance of the Guaranteed Amount actually paid as set forth aboveor, within three (3) business days after the Final Inventory Report has been issued. To to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant is entitled shall reimburse such excess to receive Agent; provided, however, that the Inventory Taking shall be reconciled within seven (7) days after its completion (and the Agent and Merchant shall use their reasonable best efforts to accomplish such reconciliation); provided further however, that in the event of a Recovery Amount from Proceedsdispute with respect to the final inventory report, Agent shall pay such Recovery Amount as part that portion of the Final Reconciliation under unpaid balance of the Guaranteed Amount not in dispute. All payments by Merchant to Agent hereunder shall be made by wire transfer of immediately available funds. Merchant agrees that any amounts due by Agent to Merchant pursuant to this Section 8.73 may in Agent's discretion be offset by the amount of Proceeds collected by Merchant for Agent's account (if any) which have not, as soon as commercially reasonable after of the Sale Termination Date. To the extent that the applicable date, been transferred by Merchant to Agent is owed the Adjustment Amount, in accordance with Sections 7.2 and the Lenders received the Adjustment Amount, then the Lenders shall promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent7.3 hereof.

Time of Payments. (a) On the first business day following issuance of the Approval Order Sale Commencement Date (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety eighty percent (9080%) of the product of (i) the Guaranty Percentage and (ii) the estimated aggregate Cost Value of the Merchandise (including DC Merchandise) to be included in the Sale as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account)Merchant. The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC Merchant on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by as reflected in the Inventory Taking Servicereport (the “Final Inventory Report”), after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, HSBC Bank USA (the “Final Inventory ReportTrustee”), as trustee for the lien holders under that certain second lien indenture dated as of November 26, 2008 and that certain third lien indenture dated as of November 26, 2008 (collectively the “Indenture Lien Holders”), and General Electric Capital Corporation, in its capacity as Agent for the lenders under that certain Fourth Amended and Restated Credit Agreement dated as of November 9, 2007 by and between, among other parties, the Merchant, Carlyle & Co. Jewelers LLC, L. Congress, Inc, Finlay Enterprises, Inc., certain additional subsidiaries thereof, the lenders party thereto (collectively, the “Secured Lenders”), and General Electric Capital Corporation, as Agent for the Secured Lenders (such agent, the “Lender Agent”), as such Fourth Amended and Restated Credit Agreement has been and may hereafter be amended, supplemented, restated or otherwise modified from time to time (the “Credit Agreement”), to the extent that any amounts under the Credit Agreement remain unpaid; provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the immediate payment to be made shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment and/or all other amounts funded by Agent on account of the Guaranteed Amount exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.73.7, as soon as commercially reasonable after the Sale Termination Date. To the extent that the Agent is owed the Adjustment Amount, Agent shall make demand for payment of Merchant and the Lenders received the Adjustment Amount, then the Lenders Merchant shall promptly, upon the written request promptly tender payment of Agent, disgorge and remit the Adjustment Amount to Agent. In the event that Merchant fails to tender payment of the Adjustment Amount, Agent shall make demand for payment thereof upon the Trustee and the Trustee shall make payment of the Adjustment Amount, within five (5) business days after receipt of such notice.

Time of Payments. (a) On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety percent (90%) of the product of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date Date, without taking into account the Global Inventory Adjustment (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with LendersXxxxxxx, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.7, as soon as commercially reasonable after the Sale Termination Date. To the extent that the Agent is owed the Adjustment Amount, and the Lenders received the Adjustment Amount, then the Lenders shall promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.

Time of Payments. (a) On No later than two (2) business days after the first business day following issuance later of (x) entry of the Approval Order and (y) execution hereof (the “"Payment Date”"), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety seventy-five percent (9075%) of the product Guaranteed Amount (the "Guaranteed Amount Deposit") in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier of (i) the Guaranty Percentage and the estimated aggregate Cost Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last date ten (10) business day immediately preceding days after the Sale Commencement Date (in which case payment shall be of the “undisputed portion of the balance of the Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date and (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (iii) the second business day following the issuance of the final audit report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by the Agent and the Merchant in consultation with Lenders, (the “Final "Inventory Report”"); provided, however, that Merchant and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be on behalf of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, Merchant may draw upon the Agent or Merchant, Letter of Credit (as the case may be, shall pay defined below) to the Merchant extent of such balance or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issuedportion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay such Recovery Amount as part the remainder of the Final Reconciliation under Section 8.7, as soon as commercially reasonable Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Sale Termination DateInventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent is owed has overpaid the Adjustment Amount, and the Lenders received the Adjustment Guaranteed Amount, then the Merchant, the Lenders shall promptly, upon and the written request of Lenders Agent, disgorge and remit the Adjustment Amount shall cause any overpayment to be immediately refunded to Agent.

Time of Payments. (a) On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety seventy-five percent (9075%) of the product of (i) the Guaranty Percentage and the estimated aggregate Cost Retail Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC Merchant prior to the Payment Date (the “Lenders’ Designated Account”). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC Merchant on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Retail Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders(as reviewed, (reconciled, and verified by Agent and Merchant, the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile and verify the Inventory Taking within ten calendar (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amountcompletion. In the event that Merchant and Agent are unable to reconcile and verify the Final Inventory Report is issued after payment of Taking within such ten (10) day period, both Agent and Merchant agree to submit any disputes for expedited resolution by the undisputed portion of the Guaranteed Amount, or in Bankruptcy Court. In the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, Merchant shall pay to the Merchant or Agent, as the case may be, Agent the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment exceeds the Guaranteed Amount and the undisputed balance any other amounts paid by Agent on account of the Guaranteed Amount actually paid as set forth above, within three (3) one business days day after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.78.6, as soon as commercially reasonable after the Sale Termination Date. To the extent that the Agent is owed the Adjustment Amount, and the Lenders received the Adjustment Amount, then the Lenders shall promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.